Appeal from order of Superior Court, Nos. 171 and 172, Oct. T., 1968, vacating order of Court of Quarter Sessions of Philadelphia County, June T., 1967, Nos. 1727 and 1728, in case of Pennsylvania Liquor Control Board v. Sidney Greenspan, trading as 743 Bar.
Thomas J. Shannon, Assistant Attorney General, for Pennsylvania Liquor Control Board, appellant.
Abe Lapowsky, for appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Cohen. Dissenting Opinion by Mr. Justice Eagen. Mr. Chief Justice Bell joins in this dissent.
This is an appeal from a decision of the Superior Court of Pennsylvania vacating an order of the Court of Quarter Sessions of Philadelphia County which affirmed the decision of the Pennsylvania Liquor Control
Board imposing fines on Sidney Greenspan, t/a 743 Bar, for violations of the Liquor Code.
As stated by the Superior Court, 213 Pa. Superior Ct. 29, 246 A.2d 433, 434 (1968), the facts are as follows. "On May 7, 1966 officers of the Philadelphia Police Department entered the licensed premises and found numbers paraphernalia. The licensee was arrested. On June 25, 1966 Philadelphia police officers observed patrons being sold drinks after the legal closing time of the bar. The licensee was arrested.
"When these criminal proceedings came to the attention of the Pennsylvania Liquor Control Board, citations were issued (January 4, 1967) to show cause why the license should not be revoked because of the violations of the Liquor Code in maintaining gambling paraphernalia and making sales after hours. After hearing, the Board imposed fines of $200 and $150 respectively. The licensee appealed to the Court of Quarter Sessions, and the court below affirmed the decisions of the Board and dismissed the licensee's appeals."
The sole issue raised in this appeal concerns the notice provisions of the Act of April 12, 1951, P. L. 90, Art. IV, § 471, as amended, the Act of January 13, 1966, P. L. (1965) 1301, § 2, 47 P.S. § 4-471. In relevant part that section states: "No penalty provided by this section shall be imposed by the board or any court for any violations provided for in this act unless the enforcement officer or the board notifies the licensee of its nature and of the date of the alleged violation within ten days of the completion of the investigation which in no event shall exceed ninety days." Before us is the question whether notice as specified by the statute must be given when the Board makes no independent investigation of its own but rather issues citations solely on the basis of information supplied by other agencies such as local police departments. No such notice was given to appellee. The Superior Court held
that its decision in Elfman, Point Bar, Liquor License Case, 212 Pa. Superior Ct. 164, 240 A.2d 395 (1968), was controlling. That opinion stated, 212 Pa. Superior Ct. at 166-7, 240 A.2d at 396 "[t]he arrest by the Philadelphia police is a criminal proceeding to be handled by the criminal courts and although notice of the criminal action may have gotten to the Board and the licensee, this does not fulfill the requirement of the legislature that notice be given, as required by the ...